Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

Mnookin begins by conceding that support for electronic recording of interrogations is growing in law enforcement; “firsthand experience with recording tends to turn law enforcers into supporters.” And recording benefits defendants as well, “because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation.” But here’s her concern:

[A]ccording to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it….When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

First thing to notice: Professor Mnookin is not saying that recording interrogations is a bad idea — quite the opposite. She says, correctly, that recording helps both law enforcement and defendants.

Second, Mnookin says that even recording interrogations under the best protocol imaginable does not guarantee the elimination of false confessions. Remember that the (false) confessions of the Central Park Five were recorded. Recording won’t cure all ills.

Third, the research she points to that describes the problem of “camera perspective bias” contains the solution: a requirement that the recording must include both the interrogator and the suspect in the picture.

The take away: recording interrogations represents a positive development, but we can’t just flip on the recording equipment. We need to have proper protocols for this practice. For example, we must require recording the whole interrogation, not just the last part in which the suspect confesses. (I’ve made that argument here.) Adding a requirement to record both interrogator and suspect makes all the sense in the world.

In my last post, I discussed the significance of the new US DOJ policy, effective July 11, that creates a presumption that all federal law enforcement agencies — the FBI, the DEA, ATF, and all the rest, will record interrogations of suspects. This will put these federal agencies on par with the several states and many hundreds of state and local departments that have recorded interrogations for years, as a matter of course.

I commented that, without access to the DOJ memorandum itself, there was no way to know whether the new policy would require recording of the whole interrogation, or just part of it (usually, the part that shows a confession, but not what lead up to it). I promised to post again when I had more information.

The full DOJ memorandum is now public, and it requires that the agency records the full interrogation: not just the confession, but the whole session. Here’s what the memorandum says:

I. g. Scope of Recording. Electronic recording will begin a soon as the subject enters the interview area or room and will continue until the interview is completed.

For proponents of recording interrogation, this is good news. A partial recording could only give a partial picture of what went on in the interrogation room. At worst, a partial recording could be downright misleading; at the very least, a recording that only contained the confession at the end of the interrogation would tell us nothing about the context — about how the police obtained the interrogation. So the Scope of Recording requirement is a very important part of an effective recording system.

Those of you who follow this blog have read (e.g., here and here) about conviction integrity units (CIUs): small groups of attorneys in a district attorney’s office who have the mission of investigating claims of wrongful convictions in past cases tried by that same office. These units, just like homicide units, major crimes units, or others in the DA’s office, are dedicated to one type of work: investigating claims of wrongful conviction. grity work.

The first conviction integrity unit in the country was established by Dallas DA Craig Watkins, in order to have a regular way to investigate the claims of wrongful convictions that his office already faced, and others that might arise in the future.

I support CIUs. They assure that the DA’s office has a built-in way to address any substantive claim of wrongful conviction. They can work in partnership with local innocence projects, which can serve as screeners for claims of innocence, in order to point CIUs to cases with real, tenable claims. (This was the arrangement between the Dallas DA’s CIU and the Texas Innocence Project when I researched and wrote my book Failed Evidence.) CIUs are far from a perfect solution; they are, after all, part of the DA’s office that may have made the alleged mistakes being investigated, and so they lack independence. But without a better alternative — for example, a state-created agency like North Carolina’s Innocence Inquiry Commission — CIUs can do the job, and can be created immediately, on the orders of the DA.

CIUs have begun to spread to DA’s offices across the country. And with that visibility comes some serious thinking about how best to assure conviction integrity. A conference will take place this Friday, April 4, and Saturday, April 5, called “A Systems Approach to Conviction Integrity,”sponsored by the Quattrone Center at the University of Pennsylvania Law School in Philadelphia. The event is free, and will be live streamed on the internet for those (like me) who cannot get to Philadelphia to attend.

Take a look at the description of the conference and the agenda. It’s designed to help people involved in the criminal justice system learn to use quality control systems from experts in laboratory science, aviation and aeronautics, medicine, public health, transportation and other fields who have created mechanisms and institutional cultures designed to reduce and ferret out errors. Here’s a sample of the conference statement, just to give everyone a sense:

The problem of quality control pervades many of the systems in our society. Panelists, each expert in quality control and systems error reduction in a complex, high-risk field, will explore efforts to address quality control in a range of other important areas, such as healthcare, aviation, laboratories, etc., and how maintaining quality in the criminal justice system may be similar to and different from quality control in these other areas.

If you are interested in the problem of reducing wrongful convictions going forward — that is, not just correcting the errors of the past, but avoiding them in the future — I urge you to attend or watch via the web stream. The conference will be a milestone along the road to a better, more accurate criminal justice system, with a ton of information we can all use.

This is a significant fact. But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.” This is how the world looks, whether on television (think ofCSIand its many clones) or in any news source. But this view doesn’t reflect the real world. As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6). Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA. And that difference seems to be increasing. In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically. In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent. The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations. (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development. While some exonerations have always come about with law enforcement cooperation, this was not the trend. Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past. According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not. That idea appears to be sinking on a much wider basis. And that is all to the good.

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world. I regularly turn to their model policy and training documents when working on those issues for police agencies. So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach. It is based on work at a summit of people from IACP, DOJ, and a host of experts. In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them. Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation. It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now. A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David. Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh. Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed. With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans. The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University. (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.” Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one. In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle. Readers of my bookFailed Evidence: Why Law Enforcement Resists Sciencecan get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site). Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

For those in the Chicago area, I’ll be speaking about my book “Failed Evidence: Why Law Enforcement Resists Science” on Wednesday, October 16, at 5 p.m. at Gage Gallery, 18 S. Michigan Avenue. The event is free and open to the public. The event is sponsored by Roosevelt University’s Joseph Loundy Human Rights Project, and is part of their annual speaker series. The link to the event is here.

The next public event for “Failed Evidence” will be in Pittsburgh on November 6, at noon at the Harvard Yale Princeton Club, 619 William Penn Place, The talk will be sponsored by the Allegheny County Bar Association and the Pitt Law Alumni Association. More details to follow.